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Case Summaries: Law Enforcement Response

The Sixth Circuit U.S. Court
of Appeals confirmed the judgment of the federal district court granting
summary judgement against the plaintiffs federal claim and remanding her
state-law claim to Ohio
state court. In this case, Phyllis May, the Administratrix of Deborah Kirks
estate, filed suit against a Franklin Township police officer, Franklin
County, and the Franklin County
Sheriff, alleging both federal due process and equal protection claims (under
42 U.S.C. 1983) and a wrongful death claim under Ohio law. On August 13, 1998, after three
911 calls by Kirk to the Franklin County Communications Center and one visit by
the police officer to the parties residencewhere he left after standing by the
front door and not hearing or seeing any signs of a struggleKirks boyfriend
killed her. Plaintiff abandoned the equal protection claim in district court,
and the plaintiff and police officer later settled their case. The trial court
granted summary judgment dismissing the other federal claims and plaintiff
appealed. Plaintiff argued, under a substantive due process theory, that
Franklin Countys act of dispatching an officer to the scene of the altercation
created or increased the risk of harm to the victim and that the countys
subsequent clearing of the police call at the scene without intervening in the
dispute heightened the risk of harm to her. However, the Court of Appeals ruled
that plaintiff had not produced any evidence that Franklin Countys dispatch of
police to the victims apartment created or increased the risk of harm to her.
Further, it was the officers decision, not that of Franklin
County, to clear the call, and
therefore, the clearing of the call did not constitute state action by Franklin County. The Court of Appeals also
affirmed the district courts decision to remand the state-law wrongful death
claim to the state court after noting that it was deeply troubled by the
Franklin County dispatchers failure to follow the established procedures
(asking eight standard questions of callers) during the first 911 call and the
dispatchers failure to accurately estimate the urgency of the second call. May
v. Franklin County Commissioners (2006), 437 F.3d 579.

Federal Appeals Court Allows
Failure to Protect Claim Against Police Department: The 10th Circuit U.S. Court
of Appeals reversed the trial courts dismissal of a domestic violence victims
procedural due process claim against the Castle Rock, Colorado police department. Plaintiff, Ms.
Gonzales, had a restraining order excluding Mr. Gonzales from the family home
and the children, except for very specific vacation times. Mr. Gonzales
kidnapped their three daughters from in front of the family home. Ms. Gonzales
called the police department and asked them to enforce the restraining order.
The girls were murdered by Mr. Gonzales. The court stated, "[W]e are
persuaded Ms. Gonzales complaint states a claim that she possessed a protected
property interest in the enforcement of terms of her restraining order and that
the officers arbitrary denial of that entitlement violated her procedural due
process rights." Plaintiff had a protected property interest entitled to
due process protection because Colorado
statutes required police to enforce domestic violence restraining orders and
established a mandatory arrest policy for violations of such restraining
orders. Gonzales v. City of Castle
Rock, Case No. 01-1053 (10th Cir. 10/15/2002).

Keywords: police liability,duty
to protect,law enforcement

Date: 10/4/2004

Alleged Abuser
Sues City
and County For Negligent Arrest:

The husband was arrested for
assaulting the wife. As part of the criminal proceedings, a no-contact order
was issued. Later, the order was recalled at the request of the wife. However,
the rescission was not entered on the law enforcement computer database.
Thereafter, the husband was mistakenly arrested for a violation of the order.
Appellants then filed an action against the county based on negligence. The
county claimed that a city employee was responsible for the error. Both parties
filed motions for summary judgment. Appellants filed a motion to join the city
as a necessary party. Appellants sought review after their motions were denied
and the county's motion for summary judgment was granted. In reversing, the
court determined that the county failed to establish that the fulfilled its
duty in rescinding the order under Wash. Rev. Code 10.99.040(5) (1997). The
confusion surrounding the no-contact order created an inference that the county
failed in its duty. Moreover, the trial court should have allowed appellants to
join the city as a party. Ropp v. County
of Spokane, 2002 Wash. App. LEXIS 3024 (Wash. Ct. App.).

In three calls to 911 made by
the decedent from her apartment, she could be heard screaming and crying and a
male voice could be heard yelling. The moving officer and other police officers
were not told that the call was a priority and were not told the contents of
the calls. The officers went to the apartment, knocked on the door, tried to
look in the windows, cleared the call, and left. The officers did not know that
the decedent was being restrained inside by her ex-boyfriend, who later killed
her. The administrator alleged that the officer violated the decedent's right
to life and personal security. The administrator could not allege a
constitutional violation based upon either a custodial-type setting or a
situation in which the police displaced other means of help or protection.
However, under the state-created-danger (special relationship) theory, the
administrator sufficiently pled that the officer had a duty to protect the
decedent after emboldening the ex-boyfriend by going to her apartment,
knocking, and then leaving. But the officer's actions were reasonable and did
not shock the conscience. Therefore, the officer's actions did not violate the
decedent's constitutional rights and was entitled to qualified immunity. May v.
Franklin County
Bd. of Com'rs, 2003 U.S. App. LEXIS
4622 (6th Cir., 3/12/2003).

The decedent was murdered by
the irate husband of the woman the decedent was visiting. The husband had been
confined to the custody of the sheriff as a result of several charges filed
against him for committing domestic violence against his estranged wife. During
his incarceration, the husband wrote several letters to his wife threatening
her with numerous acts of violence, which the sheriff's office retained in the
husband's file. Despite a court's order that no bond be given to the husband,
the sheriff released the husband from custody on bond. The estate claimed that
the sheriff's negligent release of the husband was the proximate cause of the
decedent's death. The appellate court held that the estate properly alleged a
statutory duty of care, and that such duty fell within the special duty
exception recognized by state precedent. The appellate court held that
pertinent Florida
statutes, concerning the taking into custody of persons accused of domestic
violence, codified the special duty exception. The appellate court held that
the sheriff's acts deprived the wife of critical information that might have
saved the decedent's life and thus violated the statutory duty of care. Estate
of Brown v. Woodham, 2003 Fla. App. LEXIS
3482; 28 Fla.
L. Weekly D 765 (1st Ct. App. Fl.).

The Tenth Circuit U.S. Court
of Appeals has found that a police failure to enforce a domestic violence
restraining order can lead to a valid section 1983 (federal civil rights due
process lawsuit against the police department.; Gonzales v. City of Castle
Rock, 307 F.3d 1258 (10th Cir. 2002). Ms. Gonzales had obtained a restraining
order against her husband in connection with their divorce proceedings.; The
restraining order had been served on Mr. Gonzales and entered into a
computerized database available to all state and local law enforcement
agencies.; Pursuant to the order, Mr. Gonzales was excluded from the home and
was prohibited from molesting or disturbing the peace of Ms. Gonzales or the
girls.; While in the middle of the divorce, Mr. Gonzales kidnapped his three
young daughters.; Ms. Gonzales repeatedly called the police that night and the
police refused her request to try to find her daughters and to enforce the
restraining order.; Instead, they told her to wait and see if Mr. Gonzales
returned with the kids later that night.; At about 3:20 a.m., Mr. Gonzales
arrived at the Castle Rock Police Station, where he opened fire with a
semi-automatic handgun he had purchased after abducting the girls.; The police
shot and killed him.; The police then discovered the three girls in the cab of
his truck.; Mr. Gonzales had killed them sometime earlier in the evening. Ms.
Gonzales brought a 42 U.S.C. Section 1983 lawsuit against the city and several
police officers on behalf of her children, claiming the defendants violated the
plaintiffs' rights to substantive and procedural due process for failing to
enforce the restraining order.; The U.S. district court granted the defendants'
motion to dismiss, but on appeal the U.S. Court of Appeals for the Tenth
Circuit affirmed in part and reversed in part.; Tracing the U.S. Supreme Court
decision in DeShaney v. Winnebago, which found that state actors are not liable
for acts of private violence, the Court of Appeals concluded that the
plaintiffs' substantive due process claim must fail because the
defendants';act;did not increase or enhance the danger posed by Mr. Gonzales.;
However, the Court of Appeals reversed the district court's proceedings.; The
Court of Appeals stated, "The governing statute provides that an officer
shall use every reasonable means to enforce an order and shall arrest a
restrained person when the officer has information amounting to probable cause
that the person has violated the order...The complaint in this case...indicates
that defendant police office officers used no means, reasonable or otherwise,
to enforce the restraining order.; Under those circumstances, we conclude that
Ms. Gonzales has effectively alleged a procedural due process claim with respect
to her entitlement to enforcement of the order by every reasonable means."

A federal district court
magistrate has denied a motion to dismiss a federal civil rights (Section 1983)
action against a Montgomery County pretrial services officer (court employee)
who had allegedly created a "special danger" (increased danger) for a
domestic violence victim by improperly releasing the perpetrator and by failing
to properly monitor the perpetrators electronic home detention. The perpetrator
then went after his victim and murdered her, and the victims estate brought
this lawsuit. Plaintiff claimed that the pretrial services oficer's conduct
violated the victim's 14th Amendment due process rights. The court in this case
held that the Plaintiff stated a claim for which relief could be granted under
the "special danger" doctine. This court ruling means that victims of
domestic violence have a right to sue law enforcement or court employees whose
actions increase the danger for those victims. Young vs. Smith, No. C-3-01-376
(S.D. Ohio,
May 21, 2002).

A protective order creates a
property right which causes government to incur a duty to protect the
beneficiary of such an order. Once such a property right is determined to
exist, the government's failure to adequately perform this duty may constitute
a denial of a right to procedural due process. Siddle v. City of Cambridge, 761 F.Supp.
503 (S.D. Ohio
1991).

Keywords: enforce, liability,
duty to enforce, officer, enforcement

Date: 8/23/2002

Municipal Liability

A woman who called police and
pleaded for them to arrest her husband for violating an order of protection,
was refused because officers had not witnessed a violation. Police monitored
the home for an hour, left for a meal break, and the woman was stabbed to
death. The court reversed a summary judgment for the police, ruling that
potential liability may arise from a special relationship between the
municipality and the victim, where a protection order was issued for her and
officers made an affirmative undertaking on her behalf. Mastroianni v. County of Suffolk, 691 N.E.2d 613 (N.Y. 1997).

Keywords: enforce, liability, duty
to enforce, officer, enforcement

Date: 8/23/2002

No Qualified Immunity For Police officer

Police officer not entitled
to qualified immunity because his actions were of such a degree to restrain or
prevent plaintiff from protecting her or her childs reasonable safety;
plaintiff mothers substantive due process claims survives motion to dismiss
because of genuine issue of material fact as to whether police sargent had
rendered victim more vulnerable to danger though his actions in preventing her
mother from seeking physical custody of her. Sheets v. Mullins, 109 F.Supp.2d
879 (S.D. Ohio 2000).

The Sixth Circuit Court of
Appeals ruled that U.S. Constitution does not impose an affirmative duty upon
law enforcement departments to provide a minimum level of protection to a
citizen, even where sheriff s department was aware that a deputy had threatened
to kill his wife and children, and department's policies allowed drunken
off-duty deputies to carry firearms and drive undercover vehicles. Court found
significance that only one of guns the deputy used to shoot his wife and
children was issued by the sheriffs department and that he had means of
transport available other than department vehicle. The victims' family's
failure to establish a constitutional duty of sheriff's department to protect
victims of spousal abuse prevented recovery under 42 U.S.C. 1983. Garrett v.
Gilless (CA6, 1/17/95, unpublished), review denied, U.S. Supreme Ct No. 94-1752,
6/19/95, 21 FLR 1388.

Keywords: enforce, liability,
duty to enforce, officer, enforcement

Date: 8/23/2002

Ohio State Patrol Exempt

Because troopers of the State
Highway Patrol are not peace officers described in R.C. 2935.03(B)(1), the
troopers are not subject to the domestic violence arrest provisions of R.C.
2935.03(B)(3) and the Patrol is not required to adopt a domestic violence
policy pursuant to R.C. 2935.032. 1996 Ohio Op. Atty. Gen. No. 96-014.

Keywords:

Date: 8/23/2002

Police Failure To Take Action Causes Police To Be
Liable

Police failure to take action
when decedent took all necessary steps to put police department on notice of
her husbands violation of a plenary order of protection could cause police to
be liable; Illinois Domestic Violence Act imposes affirmative duty on police to
investigate and respond to complaints. Sneed v. Howell, 716 N.E.2d 336 (Ill. App. 1999).

Court used three-prong test
to decide an equal protection claim based on law enforcement policies toward
domestic assault and abuse victims; plaintiff must prove: (1) existence of
policy of law enforcement to provide less protection to victims of domestic
assault than to victims of other assaults; (2) discrimination against women was
motivating factor; and (3) that the plaintiff was injured by the policy,
custom, or practice. Shipp v. McMahon, 234 F.3d 907 (5th Cir. 2000).

Keywords: enforce, liability,
duty to enforce, officer, enforcement

Date: 8/23/2002

Police Put On Notice By Restraining order

State law mandates
restraining orders to be sent to police, giving them knowledge of the order,
therefore police cannot claim immunity for failure to make an arrest where
there is probable cause that order was violated. Further, the restraining order
creates a "special relationship" between the police and the protected
party. Campbell v. Campbell, 682 A.2d 272 (N.J. Super. Law Div.
1996).

Keywords: enforce, liability,
duty to enforce, officer, enforcement

Date: 8/23/2002

Police Supervisors Fired For DV Response

Bliss Verdon called police
when her former boyfriend, police officer Rodney Dilbert, left an abusive
message on her answering machine. A police sergeant responded, said he talked
to Dilbert "cop to cop" but filed no report. Dilbert later tried to
force Verdon into a car and force his way into her workplace. Verdon called
police again twice with no response. Several days later, Dilbert shot Verdon
eight times with his service revolver, then killed himself. The police
commissioner fired one of the supervisors involved in the case and forced
another to retire. New York
Times, 11/1/98.

Keywords:

Date: 8/23/2002

When Victim Contacts Defendant

Sheriff's office refused to
enforce a restraining order barring defendant from the victim's residence
because the defendant alleged that the victim had allowed the defendant to
return. Despite evidence that the defendant had beaten the victim again, the
officers threatened to arrest the victim rather than the defendant, and to take
the victim's children away. The court rejected sheriff's department's argument
that it had discretion to decide whether to enforce restraining orders, saying
that the duty to enforce court orders is mandatory, not discretionary. Whether
victim invited or allowed defendant to return was irrelevant to enforcement.
Soto v. Sacramento Sheriff's Dep't, No. 332-313 (Sacramento Super Ct 1985).
This holding was codified in Cal Pen Code 1371 0(b), which states protection
orders remain enforceable notwithstanding the parties' acts, and can be changed
only by order of court. A challenge to that law was rejected in People v. Gams
(1997), 52 Cal.4th 147, 60 Cal.Rptr.2d 423.

Keywords: enforce, liability,
duty to enforce, officer, enforcement

Date: 8/23/2002

Police officers Liable For Delaying Entrance Into
Victims Home

Court found that police
officers violated deceased victims civil rights when they delayed their entrance
into the victims home although aware that victim was being abused by husband;
city and officers liable for pain and suffering of family. Didzerekis v.
Stewart, 41 F. Supp 2d 840(1999).

Keywords: enforce, liability,
duty to enforce, officer, enforcement

Date: 8/23/2002

Domestic Violence Protection order Requires Protection

Illinois' domestic violence
act raises the holder of a domestic violence protection order to a status above
that of a member of the general public, and creates a special duty of
protection from law enforcement agencies. Citing two New York cases that
recognize a "special duty" owed to persons under a court order of
protection, an Illinois court ruled that this special duty creates a cause of
action for a woman against a sheriff and the county she works for. The woman
notified the sheriff repeatedly that her estranged husband was harassing her by
phone at her place of employment, that he was armed, and that he was alone at
the home with her daughter. He was not arrested. The man then abducted the
woman from work and later shot himself at a police roadblock. Although Illinois
law limits law enforcement liability for negligence in domestic violence cases,
the woman could proceed with her claims against the police department alleging
that an officer's willful, wanton conduct or omission was proximate cause of
her injuries. Calloway v. Kinkelaar, 659 N.E.2d 1322 (111. 1995).

Keywords: enforce, liability,
duty to enforce, officer, enforcement

Date: 8/23/2002

Municipal Intent To Discriminate Not Found

Police officers' failure to
arrest abusive husband who repeatedly violated civil protection orders could
not reasonably be found to be "cause" of husband's subsequent killing
of mother-in-law and rate of wife, for purpose of holding municipality liable
under 42 U.S.C. 1983, according to the Eighth Circuit Court of Appeals, absent
evidence of intent to discriminate against women for alleged practice of
providing less protection to victims of domestic abuse than other victims of
abuse. Ricketts v. Columbia, 36 F.3d 775 (CA 8, 1994), review denied, U.S.
Supreme Ct No 94-1489, 5/1/95 21 FLR 1304.

The City of Baltimore
suspended 35 police officers who were patrolling city streets while awaiting
disciplinary hearings on charges of misconduct, including beating their wives
and girlfriends and using excessive force. The action came in the wake of the
shooting of a crime suspect by police officer Charles M. Smothers II. The
shooting resulted in a multimillion-dollar lawsuit and settlement. During the
suit, it was revealed that Smothers had been convicted of battery for a
domestic violence incident during which he fired his gun at his ex-girlfriend
and her new boyfriend. The Baltimore Sun, 1/27/99.